5.  The applicant was born in 1987 and at the time of the introduction of the application was detained in Lyster Barracks Detention Centre, Hal Far, Malta.
6.  In 2001 the applicant’s parents fled to Eritrea, where she joined them in 2003. In 2004 the applicant married Abdi Mohammed Omar in Eritrea; a son, Ahmed, was born of this union on 24 June 2005. In 2008 the applicant left Eritrea, leaving her son in the care of her parents as it was too dangerous for her to travel with him. She has not seen him since.
7.  After leaving Eritrea, the applicant travelled through Sudan and Libya. She entered Malta irregularly, by boat, on 5 February 2009.
8.  Upon her arrival in Malta she was registered by the immigration authorities, given the identification number 09C-020 and served with a Removal Order under Article 14(1) of the Immigration Act, Chapter 217 of the Laws of Malta (see Relevant Domestic Law, below), as she was deemed to be a “prohibited immigrant” under Article 5 of that Act. She was then immediately placed in detention at Ta’ Kandja Detention Centre pursuant to Article 14(2) of that Act, which stipulates that a person on whom a removal order is served “shall be detained in custody until he is removed from Malta” (see Relevant Domestic Law, below). According to the applicant, the said Removal Order did not contain specific reasons for her detention. The Government contested that statement. According to the applicant, in Ta’ Kandja she was placed in a dormitory with forty other people, including single women and children, with only occasional access to the adjoining yard for air.
9.  On 18 February 2009 the applicant filled in a Preliminary Questionnaire, thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant Domestic Law, below). However, the applicant was not sure about the content and purpose of the form since it was in English. At the time forms were simply distributed to asylum seekers by the Detention Service staff without any accompanying information. The Government explained that migrants used to interpret to each other in cases where some of them did not understand how to fill in the questionnaire and that several NGOs also assisted in filling it in. As the applicant could not read or speak any English, she relied heavily on fellow detainees to complete the form, both for practical assistance and for information as to what she should say. On the advice of fellow detainees, who were her only source of information about the asylum procedures in the circumstances, the applicant did not divulge the fact that she and the rest of her family were refugees in Eritrea, for fear that her application would be rejected and she would be sent back there.
10.  According to the Government, the applicant was taken to receive primary health care on 15 March 2009 and medical appointments were fixed for her on 19 May and 20 June 2009.
11.  On 27 March 2009 the applicant was called by the Office of the Refugee Commissioner to complete a formal application for recognition of refugee status in Malta and to attend an interview to present the grounds on which she was requesting protection. In her application and subsequent interview, the applicant repeated what she had said earlier, namely that her family was poor, there was no government in Somalia and that she had left because she could not find a job there. She did not attempt to remedy the situation by correcting the inaccurate information she had submitted earlier in the procedure.
12.  On 9 May 2009 the Office of the Refugee Commissioner rejected her application for refugee status on the grounds that it failed to meet the relevant criteria.
13.  The applicant did not appeal against that decision. Instead, a few days later, in May 2009 she escaped from detention. Sometime after her escape, she travelled to the Netherlands in an irregular manner. Upon her arrival in the Netherlands she immediately approached the authorities to ask for asylum. From there she was hoping to be able to go to Sweden in order to be reunited with her family (her father, siblings and minor son) who had been granted refugee status in Eritrea and were awaiting resettlement in Sweden. The family were eventually resettled there on 17 March 2011.
14.  On 11 February 2011 the applicant was returned to Malta under the Dublin II Regulation and detained at Safi Barracks, despite repeated attempts by her lawyer to prevent her return to Malta. At the time of her return to Malta, the applicant was two months pregnant.
15.  On 17 February 2011 the applicant was arraigned before the Court of Magistrates and charged with i) escaping from a place of public custody, namely Ta’ Kandja Detention Centre, on 17 May 2009; ii) as a person embarking or disembarking from Malta, making, or causing to be made, a false return, statement or representation and/or furnishing the Principal Immigration Officer with false information during the months prior to 17 May 2009; iii) in the same circumstances, in the Maltese Islands, knowingly making use of forged documents.
16.  The applicant pleaded guilty to all of the charges. On the same day she was therefore found guilty as charged and sentenced to a period of six months’ imprisonment. As she was pregnant at the time, when giving judgment, the Court of Magistrates drew the attention of the Director of the Corradino Correctional Facility to this fact so that she would be given all the necessary medical attention that she might require in relation to her pregnancy whilst she was detained in prison.
17.  Two days after the court judgment, on 19 February 2011, the applicant was admitted to hospital as she was very unwell. On an unspecified date she was discharged and returned to the prison, which, she alleged, had small cells and where she was subjected to constant passive smoking. She contended that she had suffered from a lack of medical attention while there. Shortly afterwards she was admitted to the Asylum Seekers’ Unit of Mount Carmel Hospital (also known as Ward M8B, the ward in the psychiatric hospital where male and female immigration detainees and female prison inmates are kept) for in-patient treatment. She miscarried in March 2011 while in Mount Carmel Hospital and subsequently contracted an infection for which she needed to be hospitalised for a period. She stated that the rooms in the ward were small with no space for exercise and that there were no proper blankets. She further alleged that the staff had failed to assist her when she had started bleeding, which had finally led to her miscarrying, and that her post-operation requests for drinking water were denied as were her requests for proper washing facilities.
18.  On 17 June 2011 the applicant was released from prison, having served her sentence. She was placed in Hermes Block in Lyster Barracks Detention Centre (Zone C) with a view to her removal from Malta. During her time in detention she was never approached by the immigration authorities regarding her removal and had no way of knowing whether any proceedings were under way with a view to her removal. In practice, it is common knowledge that no deportations to Somalia or Somaliland have ever been effected. This is no doubt due in part to the UNHCR recommendation on return to Somalia (which relates primarily to South‑Central Somalia) as well as to the very real logistical difficulties inherent in such returns.
19.  While in detention the applicant remained severely depressed. Her psychological distress was due to a number of factors, not least her prolonged detention, her miscarriage and the very limited prospects of being reunited with her son in Sweden. She described the conditions of detention as problematic, noting that although she had been placed with single women, they had been guarded by male officers (barring one female officer who had repeatedly abused Somali detainees until she was apparently transferred, following a complaint by the applicant); there were twenty-two persons in a room, which made it difficult to sleep; they were only allowed outside exercise for one or one and a half hours a day, and from April to July 2012 they were not allowed outside at all; they were fed chicken, pasta or rice on a daily basis and were not given any telephone cards.
20.  The applicant approached the Jesuit Refugee Service (“the JRS”) for assistance in obtaining a review of the decision rejecting her application for international protection. On 23 September 2011 JRS staff wrote to the Refugee Commissioner requesting a copy of the relevant documents from her case file, such as the application form, interview notes and decision which she had lost when she escaped from detention.
21.  On 10 October 2011 social workers with JRS Malta, who were monitoring the applicant in detention and offering psycho-social support, referred the applicant to the Agency for the Welfare of Asylum Seekers (“AWAS”) with a view to obtaining her release from detention in accordance with government policy on grounds of her vulnerability due to her mental health, given her deteriorating psychological condition as supported by medical evidence (also submitted to the Court) (see below for details about this procedure).
22.  On 16 November 2011 the documents requested by the applicant in September had still not been provided. Thus, she wrote to the Refugee Commissioner again, through the JRS, explaining some of the developments in her case since her interview and requesting copies of the documents relating to her first asylum application. She further requested a reconsideration of her application for asylum.
23.  On 30 November 2011 the Refugee Commissioner informed the applicant of his unfavourable decision. Noting the difference between the facts as alleged by the JRS and those as presented by the applicant, he considered that on the basis of the information submitted by the applicant, as provided in her initial application and interview, she did not face a real risk of harm and did not satisfy any of the requisite criteria for the granting of temporary humanitarian protection.
24.  The applicant was not given a copy of the documents she requested or allowed to make further submissions before that decision was taken. She was finally provided with a copy of the decision and the interview notes in her case at the end of February 2012.
25.  On 14 February 2012, while still awaiting the outcome of AWAS’s assessment (see below), the applicant lodged an application with the Immigration Appeals Board (“IAB”) for release from detention under Article 25A(9) of the Immigration Act (see Relevant Domestic Law, below). In her application she claimed that her continued detention was no longer reasonable and requested the Board to order her release from custody in view of the fact that there was no reasonable prospect that the immigration authorities would be able to enforce her removal to Somalia within a reasonable time. In her application she also noted that, in practice, no one was ever deported from Malta to Somalia. She also submitted a social worker’s report attesting to the fact that her psychological health was suffering as a result of her prolonged detention and noting that she had also miscarried while in prison.
26.  On 29 February 2012 the Principal Immigration Officer (who in effect was the Commissioner of Police) filed a response. He agreed with the facts as presented by the applicant. He further stated that, as the applicant had escaped from detention she now had to remain in detention, although it was not necessarily obligatory that she be held for eighteen months. Indeed she could potentially be released from detention earlier. Regarding the applicant’s psychological problems caused by her separation from her child, he noted that the applicant could avail herself of the provisions of the Dublin Regulation to request to be reunited with her son in Holland [sic]. Regarding the applicant’s request for release from custody, he noted that, in the first place, the applicant should never have escaped from detention in order to solve her personal problems. The time she had spent as a fugitive was time she had spent residing illegally in Malta and Holland, thus, her detention was a situation that she had brought upon herself and in consequence she should now be held in detention by law. Moreover, he considered that by escaping from detention without being medically cleared, as required by law, she had created a public health risk. Lastly, since she was receiving continued psychological care in detention he considered that her release from detention was not currently advisable.
27.  The application was never set down for hearing by the IAB and no decision on the applicant’s request was ever delivered.
28.  In the meantime, following a referral by the JRS, in December 2011 the applicant was interviewed by the Vulnerable Adults Assessment Team of AWAS with a view to determining whether she should be released from detention on grounds of vulnerability according to government policy. The person conducting the interview spoke in English. No interpreter was provided and although the applicant who had learnt some English managed to understand what was happening, she could not communicate fully or explain the full extent of her problems. The applicant was never formally informed of the outcome of this interview or of the decision taken regarding her request. However, some months later, she happened to see the woman who had conducted the interview at the Detention Centre, and, on enquiring, was verbally informed that her request had not been acceded to.
29.  The applicant explained that the vulnerability assessment procedure operated by AWAS had been developed by that organisation in order to give effect to a government policy introduced in January 2005 which stated that vulnerable immigrants should not be detained. Although AWAS was not formally charged with responsibility for this procedure by law, in practice it had full responsibility for it. It was not regulated by law, however, or by publicly available rules or procedures. The determining authority did not give written reasons for its decisions and there was no possibility of appeal, although in practice it might be possible to request a review if more evidence was forthcoming or there was a deterioration in the individual’s condition.
30.  The applicant was released on 30 August 2012 in line with government policy, as she had spent a total of eighteen months in “immigration detention” since her arrival in Malta.